District Court
New South Wales
Medium Neutral Citation: Nyasulu v Naikelekele [2022] NSWDC 507 Hearing dates: 25 October 2022 Date of orders: 27 October 2022 Decision date: 27 October 2022 Jurisdiction: Civil Before: Gibson DCJ Decision: (1) Defendant’s application for summary dismissal on the basis that the concerns notice is invalid is dismissed.
(2) Costs reserved.
(3) These proceedings listed for directions in the Defamation List on 10 November 2022 for a timetable for further pleadings.
Catchwords: TORT - defamation - plaintiffs bring proceedings for 12 social media posts on their Church website by a former Church member saying they are devils running a satanic cult - plaintiffs’ concerns notice sets out serious harm and imputations collectively rather than on a publication by publication basis - whether particulars capable of amounting to serious harm - whether the “consensus” of modern public opinion means that the imputations pleaded are incapable of defamatory meaning let alone serious harm - whether serious harm in the statement of claim adequately particularised - application for summary dismissal dismissed
Legislation Cited: Defamation Act 2005 (NSW), s 3, s 10, s 12A, s 12B, s 35(2B), s 37
Libel & Slander Act RSO 1990 C. L. 12 (Ontario)
Uniform Civil Procedure Rules 2005 (NSW), r 7.36
Cases Cited: Bangash v Patel [2021] ONSC 76
Beckingham v Browne [2021] VSCA 362
Bong Bong Town Centre v Illawarra Clay Target Club [2015] NSWSC 316
Falkenberg v Nationwide News Pty Ltd
Gantry Acquisitions Corp v Parker & Parsley Petroleum Australia Pty Ltd (1994) 51 FCR 554
Hepburn v TCN Channel Nine Pty Ltd [1983] 2 NSWLR 682
Loukas v Young [1968] 3 NSWR 549
MannaiInvestment Co Ltd v Eagle Star Life Assurance Co Ltd [1997] AC 749
Mohareb v Booth [2020] NSWCA 49
Peschmann v Quayle WD, Pa., 13 August 2019
Prospect Resources Ltd v Molyneux [2015] NSWCA 171
Rossi Recycling Pty Ltd v Buckland Valley Pty Ltd [2022] VSC 467
Salta Constructions Pty Ltd v St George Bank (2014) 45 VR 245
Sube v News Group (No 2) [2018] EWHC 1961 (QB)
Tabbaa v DailyMail.com Australia Pty Ltd (ACN 166 912 465) [2015] NSWDC 278
The Baptist Union of New South Wales v Georges River Council [2017] NSWSC 347
Tyco Fire & Security & Anor v Norfolk Mechanical & Ors [2007] NSWSC 585
WIC Radio v Simpson [2008] 2 SCR 420
Zoef v Nationwide News Pty Ltd (2016) 92 NSWLR 570; [2016] NSWCA 283
Texts Cited: Council of Attorneys-General Review of the Model Defamation Provisions - Background Paper (December 2019, p. 25)
Category: Procedural rulings Parties: Gerald Joseph Mphazi Nyasulu(First Plaintiff)
Ulemu Sithembile Nyasulu (Second Plaintiff)
Sereana Naikelekele (Defendant)Representation: Counsel:
Solicitors:
Mr D Sibtain SC (plaintiffs)
Ms P Hart (defendant)
Atkinson Vinden Lawyers (plaintiffs)
File Number(s): 2022/00267201 Publication restriction: None
Judgment
The proceedings before the court
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The plaintiffs are the founders and leaders of Streams International (“Streams”), a prophetic ministry which operates in New South Wales, Queensland and South Australia. The defendant is a former member…
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- Case
- [2022] NSWDC 507
- Decision Date
CaseChat Overview and Summary
The court found that the concerns notice was valid and capable of supporting a cause of action for defamation. The court held that the plaintiffs' concerns notice, which outlined the serious harm and imputations collectively, was sufficient. The court found that the consensus of modern public opinion did not render the imputations incapable of defamatory meaning. Furthermore, the court held that the statement of claim adequately particularised serious harm. The court dismissed the defendant’s application for summary dismissal.
The court ordered that the defendant’s application for summary dismissal be dismissed, with costs reserved. The court listed the proceedings for directions in the Defamation List on 10 November 2022 for a timetable for further pleadings.
Orders
Orders of the court
(1) Defendant’s application for summary dismissal on the basis that the concerns notice is invalid is dismissed.
(2) Costs reserved.
(3) These proceedings listed for directions in the Defamation List on 10 November 2022 for a timetable for further pleadings.
Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
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